Wyden Traps Feds In Their Own Words: ACTA Explanation Opens Up Big Hole In Cybersecurity Bill

from the which-is-it? dept

Thu, Jul 26th 2012 4:16am — Mike Masnick

Back in March, when the US State Department responded to Ron Wyden's questions about the feds' authority to negotiate and sign onto ACTA without Congressional approval (damn you, Constitution), it made an odd (and rather new) claim: that Congress had actually already approved the executive branch's ability to negotiate and approve international agreements on intellectual property issues. The claim was that the ProIP Act (of 2008) said the newly appointed IP Czar should create a joint strategic plan which, among other things, helps identify how the administration can deal with IP enforcement issues by "working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights."

Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.

Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.

I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.

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Filed Under: authority, cybersecurity, negotiations, pipa, ron wyden, sopa, treaties

45 Comments

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Ninja (profile), 26 Jul 2012 @ 4:29am

We were talking about rogue sites, rogue states but the US managed to have a rogue Executive? Next they'll go double rogue and try to ignore the Judiciary and put Americans behind bars without any judgement and for indefinite time... Nah, that wouldn't happen in the land of the free, would it?
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- gorehound (profile), 26 Jul 2012 @ 6:14am
  
  Re:
  I truly have a big Dislike for the Dems & Reps !
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John Doe, 26 Jul 2012 @ 4:46am

Long live the King!
With congress seemingly willingly giving up all its authority to the executive branch, it seems we now have a king rather than a president.
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- Call me Al, 26 Jul 2012 @ 5:17am
  
  Re: Long live the King!
  I'd suggest that someone sends an open letter to Congress, pointing out that if the excutive branch is doing all the legislating then Congress is now surplus to requirements and will be issued with the appropriate pink slips.
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  - Anonymous Coward, 26 Jul 2012 @ 6:23am
    
    Re: Re: Long live the King!
    But who then will posture over the latest budget numbers? Posturing is an essential function of any government bureaucracy.
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- Anonymous Coward, 26 Jul 2012 @ 5:47am
  
  Re: Long live the King!
  O did say he was "ready to rule from day one".
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Anonymous Coward, 26 Jul 2012 @ 4:50am

it seems to me that the US is doing it's best to rid the country of Congress completely and turn itself into nothing other than a state run country with no rules except the ones that are needed at the time and no consideration of any individual only self serving companies. not sure what title it gets though but i bet the millions that died in wars trying to protect the 'land of the free, home of the brave' wonder why the hell they even bothered.
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- Anonymous Coward, 26 Jul 2012 @ 9:03am
  
  Re:
  Personally I believe that what we are witnessing is the death throes of nation. Unlike the past, now because communication technology, we are seeing more of the early signs that the individual in the past would have typically missed.
  
  I believe we (as I am a US citizen) started down this path long ago. I would have said that we could have averted this up to the point where the Supreme Court chose our President in 2000. That should never have happened. When issues where discovered with ballots and the counting was suspect, the correct course of action for the Supreme Court would have been to invalidate the entire countries results and for the election to be redone for everyone. Instead the court decided who won for us and showed what many had always believed anyway, that the American peoples vote doesn�t really mean much. While the problems and perceptions where there before, it was just speculation, after that it was a known fact. 911 just reinforced this coming so quickly afterwards and its fast rollback of civil liberties in the name of protection.
  
  Not only did those events show to the American citizen that what we were always taught was merely propaganda, but because of the communication (i.e. Internet) it was displayed for the world. It illustrated to our allies and enemy�s that the US government was as hypocritical as some claimed.
  
  The power and money control have most likely always been there, but now it�s no longer behind the curtain and it can�t be hidden again. So many of our own people no longer care since they don�t think they can change anything. Our �allies� people (their government doesn�t matter since they most likely knew to begin with) no longer see the US through filtered glasses and see the country for what is has been for a long time, a bully. And our enemies have their justification for continue to hate us, since they can point to our government and basically say, �they do everything they condemn us for�.
  
  The only question I have remaining is how long. Initially I thought it would be many decades, maybe even a century, but given the events that have occurred in the last several years, I believe the pace is quickening. I think that those in control have either realized what is happening and they are trying to take as much as they can before the entire system collapses, or some have gotten such a sense of entitlement (using this as it was originally meant, in terms of someone thinking they are better than others, and not how the media uses it now) that they really just don�t care to hide their actions anymore.
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Anonymous Coward, 26 Jul 2012 @ 5:00am

The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill.

Actually I think it's pretty clear The State Department wants it one and only one way, the way that gives them powers clearly delineated to the legislative branch under the Constitution. The administration clearly wants the ability to unilaterally create law without congressional oversight through the 'international treaty' backdoor just like it thinks it has on IP issue. The only thing they don't want is for anyone to realize that's what they want or to admit that's what they want publicly.
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Loki, 26 Jul 2012 @ 5:04am

This is just another example, in an already long a growing list, of why the biggest threat to the American people is not Al-Queda, China, Iran, North Korea, Anonymous, Wikilieaks, Pirates, or the forthcoming Zombie Apocalypse, but is in fact the United Stated Federal government.
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- gorehound (profile), 26 Jul 2012 @ 6:15am
  
  Re:
  Yes this is what I believe as well.
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- MrWilson, 26 Jul 2012 @ 8:45am
  
  Re:
  ...And the corporations that run it.
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 26 Jul 2012 @ 5:17am

Apparently, Wyden is a piracy (and hacker) apologist. He seems more than willing to put a stick in the spokes at every turn, grandstanding as he goes.

Oh and Loki, Wyden is part of that government you should fear.
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- Anonymous Coward, 26 Jul 2012 @ 5:29am
  
  Re:
  Because the last thing we need is an accountable government.
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  - Anonymous Coward, 26 Jul 2012 @ 5:33am
    
    Re: Re:
    You need an accountable government, but you won't get it by poking it with a sharp stick and playing "gotcha!" politics. That's old, old, and ugly. Wyden is doing exactly what the "critters" of old did, they didn't work to make things better, they works to catch each other out.
    
    It's sad. He's already sunk to their level.
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    - Ninja (profile), 26 Jul 2012 @ 5:41am
      
      Re: Re: Re:
      Wait what? Umadbro? So now if you rise awareness of a problem then its ugly? In what twisted dictionary do you pick your words?
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      - The eejit (profile), 26 Jul 2012 @ 9:03am
        
        Re: Re: Re: Re:
        I'd say the current political one.
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    - abc gum, 26 Jul 2012 @ 5:54am
      
      Re: Re: Re:
      "gotcha politics" - just what the hell does that mean?
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      - MrWilson, 26 Jul 2012 @ 8:47am
        
        Re: Re: Re: Re:
        In the context of Sarah Palin, it seems to mean, "people pointing out that you're full of shit or just stupid." So that maybe a pretty accurate use here, however negative the connotation that the AC has about it is.
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    - Anonymous Coward, 26 Jul 2012 @ 6:19am
      
      Re: Re: Re:
      If pointing out double standards and secret interpretations of the law is 'Gotacha! politics' then I'm all for 'Gotcha! politics.'
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      - abc gum, 26 Jul 2012 @ 6:31am
        
        Re: Re: Re: Re:
        gotcha politics is redundant, similar to creative accounting
        
        "gotcha" tends to be a neocon keyword used to trigger a negative response.
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    - Anonymous Coward, 26 Jul 2012 @ 6:25am
      
      Re: Re: Re:
      This is... almost the most pathetic thing I have seen today. The problem with the US, is that congress is too polite these days, they try to much not to offend, to avoid being called mud slingers, or being accused of gotcha politics... (at least when actually in a congress session).
      
      We have a startling need of congress people who can stand up, look their fellow senator in the eyes, and state "That was a load of bullcrap." We have senators lying (no, speaking from the heart), LYING (no no, they didn't research the truth enough), BLATANT LYING (misinformed by a lobbyist), throwing the truth on the ground and destroying it so blatantly obvious at least half the congress should realize it (putting a hypothetical on the congressional record), but no, they excuse themselves. They listen to the bullcrap lies, smile politely, allow the lies to stand, so they don't offend, so they don't play dirty politics, all the while throwing away the dwindling respect of the US.
      
      Congress collectively needs to (if you excuse the extremely male-centric wording) grow a pair. Wyden is exposing himself to this sort of accusation because he is doing what NEEDS to be done. Calling out bad actors on their bullshit. I just wish this was the first signs of congress turning around.
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      - Anonymous Coward, 26 Jul 2012 @ 6:44am
        
        Re: Re: Re: Re:
        " they try to much not to offend, to avoid being called mud slingers, or being accused of gotcha politics."
        
        The point is Wyden isn't trying to add to the discussion, he is trying to catch someone out and embarrass them into backing down. That is Gotcha... plain and simple.
        
        You may appreciate it because you support his views, but it's just the same bullshit as always... and Kennedy style play.
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        abc gum, 26 Jul 2012 @ 6:46am
        
        Re: Re: Re: Re: Re:
        "The point is Wyden isn't trying to add to the discussion"
        
        You may say this because you do not support his views but it's just the same bullshit
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        Anonymous Coward, 26 Jul 2012 @ 7:04am
        
        Re: Re: Re: Re: Re: Re:
        Gah, you are clever. I bet you were a teachers pet too, just to keep from being beaten up by the bigger kids.
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        MrWilson, 26 Jul 2012 @ 8:48am
        
        Re: Re: Re: Re: Re: Re: Re:
        You seem fixated on adolescence. Is this because you're still in yours?
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        gnudist, 26 Jul 2012 @ 6:51am
        
        Re: Re: Re: Re: Re:
        If it embaresses them enough to keep them from passing insane laws then I'm all for that.
        
        I don't see why shaming people is an ivalid tool for fighting bad laws.
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        gnudist, 26 Jul 2012 @ 6:52am
        
        Re: Re: Re: Re: Re: Re:
        *invalid
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      - abc gum, 26 Jul 2012 @ 6:44am
        
        Re: Re: Re: Re:
        "The problem with the US, is that congress is too polite"
        
        lol - the problem is they are full of shit.
        
        Congress needs to accomplish something other than blowing hot air and flinging BS. For the past four years most of them have taken their paychecks whilst acting like children and the party of no considers this a success.
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        Anonymous Coward, 26 Jul 2012 @ 7:27am
        
        Re: Re: Re: Re: Re:
        Well... yes you can say it like that too. Or that they are so beholden to not having their lies called out, they don't do it to anyone else, or they no longer have any sense of what truth is, or that they are afraid of counterarguments if they speak up, no matter the reason, they sit and smile at the lies, not speaking up.
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      - Anonymous Coward, 26 Jul 2012 @ 8:48am
        
        Re: Re: Re: Re:
        The only way to restore a functional Congress is through term limits. With two year terms in the House, they a focused solely on re-election. The Senate, less so. If we limited Senators to two, six year terms and the House to two, four terms- the world would be a better place. Hell, even if we just extended House terms from two to four year terms it would help. Sadly, this would require the holders of these jobs to enact legislation that would end their careers prematurely- which makes it wholly unlikely.
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        The eejit (profile), 26 Jul 2012 @ 9:06am
        
        Re: Re: Re: Re: Re:
        No, the only way to fix Congress is to make it a life thing, where life = death at the end of your tenure as Senator/Congresscritter. But that would be barbaric, apparently.
        
        Oh, and another potential fix would be to ban corporate donations. Period.
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- Ninja (profile), 26 Jul 2012 @ 5:51am
  
  Re:
  Apparently, you are a troll. It's a very important point he has risen a lot of times already.
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- gnudist, 26 Jul 2012 @ 6:02am
  
  Re:
  Better than being a bullshit apologist like you
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- Anonymous Coward, 26 Jul 2012 @ 7:31am
  
  Re:
  while it may seem pedantic and unimportant, it has jurisprudent and possibly serious implications for what wordings are needed in laws to get a desired effect. In this case it is a question of what it takes to constitute an ex-ante permission and thereby what it takes from a law to give away future congressional approval of treaties. I think that many people are ignoring the legal side of the wordings and "gotcha politics" seems to capture that ignorance.
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The Logician (profile), 26 Jul 2012 @ 5:55am

Senator Wyden is doing his job, Yellow AC. Which is more than can be said for most of Congress, even most politicians.
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Anonymous Coward, 26 Jul 2012 @ 7:30am

"The point is Wyden isn't trying to add to the discussion, he is trying to catch someone out and embarrass them into backing down."

"Gah, you are clever. I bet you were a teachers pet too, just to keep from being beaten up by the bigger kids."

Heck no. I was the one who all the teachers hated. I spoke out. I called out their BS. I told them when they were wrong. If they made a mistake I was sure to make sure everyone out there who didn't know better found out about the truth. I stood up when no one else knew better (or wouldn't speak up). I wanted stuff to get done right. Does that make me the bad guy? Well OK then, I'm the bad guy, but stuff got done right and the status quo didn't continue.

By the way, teachers called people like this revolutionaries of their time.....
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- Anonymous Coward, 26 Jul 2012 @ 7:40am
  
  Re:
  Sadly, today these kinds of people are called 'terrorists' and are 'disappeared' by the non-existent men in black....
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  - The eejit (profile), 26 Jul 2012 @ 9:07am
    
    Re: Re:
    Dammit, and I didn't get my last suit, too!
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Chris Brand (profile), 26 Jul 2012 @ 9:59am

"I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over."

At which point they say "Yep, that's right. Thank you", right ? Isn't that the ideal result from their point of view ?
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DOlz, 26 Jul 2012 @ 10:12am

Why pretend anymore?
Instead of calling the leader of the USA president isn't time we just started calling him Caesar?
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Brent (profile), 26 Jul 2012 @ 10:59am

this is appalling. i feel that we are completely helpless to do anything about this obvious shift from democracy to monarchy. Does anyone really think that Romney would give power back to Congress if he were elected instead of Obama?
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Anonymous Coward, 26 Jul 2012 @ 11:09am

isn't it entirely possible that the wyden letter may be about his effort to improve the cyber bill to ensure that it doesn't authorize a Cyber ACTA? that isn't "gotcha," that is shrewd.
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AC Cobra, 26 Jul 2012 @ 1:01pm

Need more like Wyden
"The only way to restore a functional Congress is through term limits. "

I disagree. We would lose the few good ones like Wyden and Bernie Sanders as well. And instead of spending all their time getting re-elected they would be busy securing cake lobbying and "think tank" positions to move on to. Just as bad. What ought to happen is more of you in the rest of the rest of the country get busy electing people like Wyden.

/high horse
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Rekrul, 26 Jul 2012 @ 3:18pm

Wyden continues to be a thorn in the government's side. I expect him to be involved in some type of scandal that will cause him to resign any day now.
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